Excerpt:civil procedure code (act v of 1908) section 11, whether exhaustive - res judicata--husband and wife, question of divorce decided between--question, whether can be reagitaied by wife's father. - - 3. as regards the question of divorce, i think the lower courts were perfectly right. 5. the next point is whether the court below was wrong in holding that the statement of the appellant himself showed that there was a good cause of action against him......the father-in-law, ismail, to adduce evidence in proof of his allegation that there was in fact a divorce. ismail raised a further plea that there was no cause of action against him. on that plea the learned judge of the lower appellate court has pointed out that it was clear from his statement that he was not prepared to allow his daughter to go and live with her husband and there was, therefore, a cause of action against him.2. in this appeal it is urged that the lower courts were wrong in shutting out evidence. it is also urged that there is no cause of action against ismail. the last of the grounds taken in appeal, namely, the 4th ground, has not been pressed before me.3. as regards the question of divorce, i think the lower courts were perfectly right. the question of the status.....

Judgment:

Mukerji, J.

1. The facts of this case which have give rise to this appeal are these: The plaintiff, Nazir, is the husband, the appellant, Musammat Khatoon Bibi, is said to be his wife. Muhammad Ismail, appellant No. 2, is father of Mt. Khatoon Bibi. In a previous suit between the husband and wife it was held that there was no divorce. Nazir instituted this suit, out of which this appeal arises, for the restitution of conjugal rights against his wife. The father-in-law, Ismail, was made a party to the suit on the ground that the father-in-law was putting obstructions in the way of the wife's going to live with the plaintiff. The lower Court found that the question of divorce was res judicata and did not permit the father-in-law, Ismail, to adduce evidence in proof of his allegation that there was in fact a divorce. Ismail raised a further plea that there was no cause of action against him. On that plea the learned Judge of the lower Appellate Court has pointed out that it was clear from his statement that he was not prepared to allow his daughter to go and live with her husband and there was, therefore, a cause of action against him.

2. In this appeal it is urged that the lower Courts were wrong in shutting out evidence. It is also urged that there is no cause of action against Ismail. The last of the grounds taken in appeal, namely, the 4th ground, has not been pressed before me.

3. As regards the question of divorce, I think the lower Courts were perfectly right. The question of the status between the alleged husband and wife has been once decided as between themselves. It would be simply monstrous to allow the father to prove that there was, as a matter of fact, a divorce. It is true that Section 11, Civil Procedure Code has no application when the question is raised by Ismail. But that section is not exhaustive. In the case of S. Ramamurti Dhora v. The Secretary of State for India in Council 19 Ind. Cas. 656 : 36 M. 141 : 24 M.L.J. 469, it was held that where there was a dispute between to rival claimants for a property and the suit was decreed in favour of one it was not open to a third party to contend that the property did not belong to the successful party. In this connection see also Naha Kishore Tillokdas v. Paro Bema 74 Ind. Cas. 283 : 50 C. 23; (1922) A.I.R. (C.) 198. The principle on which these decisions were given applies to this case. If the Courts were to allow Ismail to prove successfully that there was a divorce, the result would be that, while the wife would be compelled to go and live with her husband, the decree, would be nullified by the father being allowed to keep back the wife. The rules of procedure are framed for aiding justice and they should not be so interpreted as to operate against the course of justice.

4. In my opinion, therefore, there is nothing in the first and second grounds of appeal.

5. The next point is whether the Court below was wrong in holding that the statement of the appellant himself showed that there was a good cause of action against him. I think that the Court below was justified in saying that it was clear from the attitude and pleadings of Ismail in the conduct of the case that the plaintiff was right in saying that Ismail was unwilling to allow his daughter to go and live with the plaintiff.

6. The appeal fails and is hereby dismissed under Order XLI, Rule 11, Civil Procedure Code.